Parsing language is one of the things lawyers do, or at least are expected to do.  The truth is, we often don’t do it, or at least not any better than non-lawyers.  And non-lawyers do a fairly lousy job of it.

Yesterday, I wrote of Mirriam’s query about the meaning of “thought leader.”  It’s a silly, meaningless phrase, but at least Mirriam asked.  We’re inundated with strings of meaningless words in the blawgosphere, mostly by muddy thinkers who adopt jargon that sounds almost as if it means something so that even muddier thinkers will wrap it around themselves.  This is the way of marketing.

But there are more serious issues arising from loose language, which struck me as I read Scott Henson’s Grits post, entitled New York implements statewide eyewitness ID guidelines.  The story upon which the post was based certainly gives the impression that New York has, indeed, implemented new guidelines.  The problem is that New York, meaning the entity that holds the keys to prison cells and sends out tax bills, did no such thing. 

The story refers to the District Attorneys Association having come up with a tepid “best practices” for the conduct of eyewitness identifications, that suggests some reforms and is intended to forestall serious reform that might be put into law by the real New York (as in State government).  In other words, it’s a nice idea, but if it doesn’t happen that way, so what?  This isn’t law.  New York did not implement anything.  It’s a trick for the less-than-careful. 

George Orwell warned us about the use of language to muddy our thinking and blunt our ability to differentiate thoughts.  He feared that government, by the elimination of language that could be used to expose its failings and dishonesty, would leave us incapable of challenging it.  I fear that we’re doing the government’s job for it.  It takes a lot of work to read through stories, press releases, whatever, to distinguish the truth from the misleading fluff, designed to prey on muddiness.  It anticipates our unwillingness to do the hard work involved in thinking.  We too often accommodate.  As my daughter once informed me, she hated thinking.  It hurt.

It’s not just the hard work of thinking, but the unpleasant work of being disagreeable that prevents our scrutinizing and challenging the mud.  Gideon called me cynical when I questioned news of “New York’s implementation,” but I wasn’t cynical at all.  Rather skeptical.  Over the years, I’ve learned to question things, and I do.  I admit it, I’m a skeptic.

Be a skeptic too.  Question what you read, what you’re told, what you see.  Granted, sometimes muddy language is nothing more than an inartful expression.  Often, however, it reflects an effort to mislead and deceive, to suggest something that its purveyor wants you to think that isn’t true, but isn’t sufficiently false that they can later be called a liar.  It’s a test to see how gullible, how willingly ignorant, you can be.

Yes, it’s unpleasant being the one who questions others.  It’s particularly unpleasant when the mass of recipients of this information happily take a mud bath, seemingly cheering it on as if it’s epiphany.  Lately, I see people retwitting posts that contain nothing more than unrelated words and phrases strung together as if it conveys some incredible message when it’s nothing more than gobbledygook, and adding in their kudos for such a “great post.” 

Sometimes this is done just to curry favor with the writer, as many care nothing for content and everything for having people they don’t know think well of them.  They are willing to sacrifice any semblance of integrity for a new follower.  Better to be nice than, well, anything else.  How many are trying to gain popularity to compensate for childhood slights?

Is this really all you care to be?  Another warm body on the hand-holding bandwagon of fuzzy thought and meaningless words?

Don’t be afraid of appearing disagreeable because you won’t be the most loved and adored person on the internet.  It’s okay to be a skeptic, even if it means that you can’t agree with what everybody else is saying.  You may not always be right, but at least you won’t be a willing fool.

Read carefully.  Think carefully.  Question as much as you can.  We’ll all be better for it.

The story of the Mafia cops, Louis Eppolito and Stephen Caracappa, are the stuff of movies.  And New York.  The mob is as intertwined in the history of New York City as the Brooklyn Dodgers, except they didn’t move out on their own.  And a part of every story is the cop on the take.

Barry Gibbs is 62 years old.  He walked out of prison in 2005 after doing 19 years because Eppolito framed him for murder.  Eppolito needed somebody to nail to close the file, and Gibbs was the man.  He settled with the State for $1.9 million, and now settled with the City for $9.9 million. 

“The settlement I’m happy with; it was my bottom-line settlement,” Mr. Gibbs said in an interview, sounding almost indifferent to the news. “They are permanent scars,” he added. “It’s been a long road. I’ve been through a lot, and it was very traumatic for me.”

This is the largest settlement ever with the City of New York.  For now.  It’s a lot of money, particularly for a former postal worker who struggled with drug addiction and didn’t have great expectations for his future.  He was the perfect choice for Eppolito to frame, a throw-away in the scheme of humanity.  No one would ever care if Gibbs lived or died.

Barry Gibbs cared.  Barry Scheck cared.  First, his innocence project obtained Gibbs’ freedom.  Then, in his private lawyer capacity, he obtained compensation.  Yes, he took his third, but nobody hands Scheck those sweet suits he wears for free, you know.  He’s allowed.  In fact, few are more entitled than Barry Scheck.

But Barry Gibbs isn’t likely to need any bespoke clothing, even though he can afford to buy anything he wants.  He’s just trying to adjust, and it hasn’t been easy.

“I’m surviving in this world out here,” he said. “It’s not easy readjusting to this life. Computers, phones, cars, everything — it was overwhelming to me when I first got out. Now I just flow with it.”

Does money help to readjust?  It can’t hurt, I assume, but I bet Gibbs would have paid for this opportunity:

Mr. Gibbs even attended a sentencing hearing for Mr. Eppolito and Mr. Caracappa, who are serving life plus 100 years in prison, during which he was escorted out for yelling: “Do you remember me? I’m the guy you put away for 19 years!”

It disrupted Eppolito’s sentencing, but only for a few seconds.  Hardly too much to tolerate in comparison to 19 years of life lost.

It’s never clear to me whether money compensates for the years of life lost to prison, or even how much money is the right amount.  It doesn’t square things up, but it’s the best the system can offer.  The system’s best isn’t very good.  But money serves another purpose, as its the currency of politics.  To some small extent, it puts a price on government’s blind faith in bad cops.  It’s that much less they have to hand out to cronies for honest graft.

The New York City Police Department had reason to believe that Eppolito and Caracappa were dirty long before they retired and took their pension.  As is the police way, they were cleared for service.  Eppolito retired to Vegas, where Gibbs original police file was found amongst his papers.  He obviously remembered Gibbs enough to glom the file.

When Eppolito was sentenced to 100 years in prison, he was 60 years old.  When Gibbs was sentenced to prison, he was only 38. The years from 38 to 60 are big ones, not that any year of life is inconsequential.  I wouldn’t trade those 22 years of life for $10+ million.  But then Eppolito wouldn’t have chosen me to frame.

A recurring theme is that the targets of police abuse, misconduct, framing, are societal throw-aways.  The sort of people that good, law-abiding people care nothing about, and are inclined to believe are guilty of something and, well, just generally worthless.  Prosecutors and judges care little for the flotsam of society, and feel no particular concern that they get tossed carelessly on the junkheap of the criminal justice system.  These are the people who are smeared in the first police press announcement with their prior criminal record, irrelevant except to show their propensity toward crime and their worthlessness to society.  “Who cares” is the message.

Had Eppolito framed a respected member of the community, it’s likely that it would have been subjected to far greater scrutiny by all the government players.  It’s likely that the respected member of the community would have had the resources to mount a fight.  Eppolito didn’t want a fight, so he threw Gibbs away.  Had it been a respected member of the community, it would have cost a whole lot more than $10 million dollars to settle this claim.

The price of Barry Gibbs’ innocence was cheap to everyone but Barry Gibbs.  When it’s your life thrown on the junkheap of society, the price cannot be measured.  Contrary to what judges, prosecutors and dirty cops may think, Barry Gibbs’ life is every bit as worthy as that of the people they perceive as a respected member of society. 

H/T Ed at Blawg Review via Injustice Everywhere

You remember the Golden Rule, as your mother taught you on her knee:  He who has the gold, rules.  What?  Do unto others?  No, that’s the golden rule for losers.  Just ask David Friedman’s law student.

My student evaluations for an upper-level class arrived last week in my mailbox.  The evals were benign and unremarkable with two exceptions.  One student wrote, “Nothing to improve, except for clothing.” That’s feedback I can act on.  I can change the outside easily. Men’s Wearhouse, here I come.

One student refused to dignify the front page of the evaluation with any markings, except for the word “OVER ->” On the back, the student wrote “WE PAY YOU. YOU DON’T PAY US.”

The birth of the law student tea party?  Consumerism taken to the extreme?  Or perhaps its the Slackoisie view of the world, that education, like the purchase of a third generation iPad, is cash and carry.  And this law student will soon become a lawyer.

If you pay to attend my school and allocate your time toward my class, you have to follow my [very reasonable] rules to earn credit.

If you are reading this and thinking, “Well, that’s obvious.” It’s not obvious to all students. Why is that? We can play the old “it’s generational” song on our violins because we know the tune well, but I think students today consume all services differently.

I suspect he’s right, that there is a very different attitude of students as consumers.  But then, we called our professors “Professor” when I went to law school.  We knew they had first names, but had no use for the knowledge.  If we had a question, we stood outside their door at office hours.  We did not know their email address.  There was no such thing as an email address at the time.  We politely inquired whether we could speak with them, lest they scream at us to go away from their door.  And we prayed our question wasn’t too stupid, or they screamed at us that we were too stupid to ever become a lawyer.

It’s can’t be chalked up so neatly, however, to consumer trends of youth.  Missing is the element of respect toward someone who has obtained a degree of knowledge to which they aspire.  Missing is that recognition that they are in law school by their grace and a low draft number.  Missing is the basic comprehension that tuition is not the same as buying songs off iTunes or Juicy flip-flops. 

Friedman is obviously bothered by this response, enough so that he wrote about it.  But not enough to come clean, apparently.  He still finds a way to trivialize the problem, despite being bugged by it.  He can’t bring himself to say that to a generation weaned on narcissism, they are always doing you a favor. 

The evaluation form is terrifying, as it reveals the internal workings of a mind that will soon be responsible for thinking of resolving the legal problems of others.  Will this mind contort its responsibility into an obligation the client has to the lawyer?  Will this mind rationalize its failure, neglect, incompetence elsewhere, as it did here to the professor?  This response doesn’t reflect the mind that should be allowed such an important responsibility. 

Doesn’t Friedman worry about this?  As a lawprof, does he have a responsibility to weed out those who should not be allowed to hold such awesome responsibility?  Certainly, he can’t think that this attitude represents the makings of a good and decent lawyer.  Yet he makes no mention of the need to identify this bad seed and yank him out before he infects others.  Or is it too late, since this is a reflection of students in general, and not merely one bad student.

If I were a lawprof, this would concern me greatly.  Not about the student, but about those who could be harmed by the student.  It’s hard enough to deal with an unethical lawyer, one whose moral compass and world view are so badly askew that they can’t be trusted with the lives of clients.  Shouldn’t the lawprof, and law school, be alarmed and identify this person before he harms people?

Oh, but that would mean that they wouldn’t get his tuition.  Well, he’ll be interviewed before admission.  If they have a problem with him, they can always deny him a ticket.  In the meantime, the law school can continue to cash his tuition checks with a clear conscience, knowing that there’s someone else down the road upon whom it can dump the responsibility.

The Golden Rule.  It’s alive and well.

I like Mirriam Seddiq.  She’s witty, spunky and manipulative, everything you could want from a woman lawyer.  She’s got moxie.  I respect moxie.  Mirriam was a blogger in the early days, long before Simple Justice was a twinkle in my eye.  I was unaware of her existence when I started, mostly because her posts were about her daily doings, and I was interested in the law rather than pets, meals and fee-ee-eelings.

After the child-birth hiatus, Mirriam came back, both to the practice of law and to the blogosphere. She’s busy trying to re-establish herself as a criminal defense lawyer, and to integrate herself back into the blogosphere.  Her old blog is new again.  Called Not Guilty (No Way) , Mirriam writes about her life.  She also has a lot of questions.

Today, I read (ish) an article on how lawyers are using social media.  As I’ve recently said, I’m at a crossroads with Not Guilty, trying to figure out what direction I want to go in and how I’m going to get there.  As a new solo attorney going it on my own for the first time, I’m wondering how to get clients to know I’m here and that I really have a firm grasp on this whole law thing. There are attorney who use social media to advance their business – my friend Jamison Koehler does not apologize for dropping SEO breadcrumbs throughout his blog.  Rock Star solo Carolyn Elefant, and Niki Black (who writes the book on Criminal Law in New York State) are fonts of knowledge on this front and have been exceptionally helpful as I try to make my way through this maze.  I believe that the internet has a power that I have not yet tapped, and I’m slowly coming around to that idea.

I can just see Carolyn cringe when she reads Mirriam’s description of her as a “rock star.”  It’s the sort of thing that hypesters and scammers call themselves to promote their self-importance.  Carolyn is substantive, and does everything possible to avoid the hype and scam.  Mirriam wouldn’t know that calling a substantive lawyer a “rock star” is demeaning.  She means well.

With that said, I admit to having no idea what that article I read (ish) means. Seriously.  None.  I have an understanding of the english words being used, but put all together – they mean nothing to me.  Thought leader?  I asked what this was and got non-answers.  While people may think the term is idiotic, I’d still like to know what it means in current usage. 

I was one of the people who gave Mirriam a snarky answer.  I thought her question was a joke.  She seemed sharp enough to grasp that there is a coterie of marketers online who use a perverted form of language to craft expressions like “thought leader” to suck in people who hope to someday become “rock stars.”  The real answer is that a “thought leader” is a person whose thoughts other people follow (seems rather obvious, no?), and the phrase is used to suggest that if you start a blog, preferably with the paid assistance of any number of marketers, you will become a leader and others will fawn over your every thought, eventually raising you to rock star status. 

I would have thought Mirriam would figure out what this silly phrase, “thought leader,” means.  It means nothing.  It’s a phrase invented by marketers to create a vague suggestion of self-importance in weak minds.  No one really defined it, nor was it meant to be defined.  It was meant to promote.  It was meant to create an impression, a sense, of meaning in the absence of meaning.  It was meant to appeal to people who would never be a “thought leader.” 

Perhaps Mirriam’s confusion is brought about by an ambivalence, an online schizophrenia, as is evident in her statement about Jamison, Carolyn and Niki.  As a new solo, she wants business.  The marketers, with the love and support of internet cheerleaders, offer what appears to be the road to wealth and success.  Of course, anyone with a modicum of reasoning skills wonders, “but if I go online, and everybody else goes online, then we’re all the same and right back where we started, right?”  Not exactly.

Some approach the internet as means of presenting substantive thought.  Others as a marketing machine.  Still others try to have it both ways.  The marketing lawyers use whatever tools are available to distinguish themselves, such as lies and deception.  They claim vast experience as lawyers even when they’ve only practiced a few weeks.  They claim vague assurances of victory, knowing full well they can offer no assurance.  They use former prosecutor status to suggest that they have some hook with the other side that can be purchased to beat the system. 

With each new marketing lawyer, the hole is deeper.  It has to be, as it serves no purpose to market yourself as inexperienced, incompetent and scared.  So every marketing lawyer is God’s gift to the law.  Ho hum.

The hybrids, lawyers who think they can play both sides of the field, generally fail at both.  They are banal in their thoughts and tepid in their self-promotion.  There’s little use for a lawyer who fits that description.

The substantive lawyer may win the approval of his peers, provided his substance doesn’t conclusively prove he’s got no worthwhile ideas at all (always a risk, much to the dismay of the lawyer who learns that he is, in actuality, a “thoughtless leader”).  But he still isn’t likely to achieve wealth and success on the internet.  Despite the thousands millions of words murdered by marketers and cheerleaders to tell us how to do it, such as the absurd article at Mashable that withers under the slightest scrutiny, it’s never really happened, unless you’re trying to bottom fish for the clients rejected by flesh and blood lawyers or seek to establish yourself as the foremost pro bono lawyer in America.  Many have tried and died, with the moribund blogs of the deceived littering the landscape like tombstones of their failure.  The reason Mirriam didn’t understand the Mashable article is that it’s a mash of fine sounding words without substance.  Fundamental to good marketing is to make things sound wonderful and mean nothing.

In the comments to Mirriam’s post are two comments with additional questions that I will attempt to answer.  First, an easy one from Jamison,

What I don’t understand is the criticism of social media — and the people PROMOTING social media — by the people USING social media.

The criticism isn’t “of” social media, but of the abuse of social media.  People use social media to lie.  About themselves, about others, about social media.  The people doing the criticizing, and I’m one of them, like it very much, but don’t like those who use it to deceive.  Not only are we against lying, as an evil in itself, but the liars brand us all as being part of the scam.  Those of us who don’t lie don’t want to be viewed as part of this scam.  We try to keep the place clean and honest.  Glad I could explain that to you.

Then comes a puzzlement from a surprising source, Norm Pattis.  It surprises me because Norm’s been around a long time, having had 38 separate blawgs since his departure from Crime & Federalism.  Norm had been one of the most incisive, fearless, hard-hitting blawgers around.  If I can find where he hid his Prozac and flush it down the toilet, he may be again.

I am not at all clear about this stuff either. I am puzzled by the heavy mockery of all this, however. We all write for our various audiences. I am inclined to think that anti-marketing is merely one brand of marketing. But I am not really sure.

It’s a puzzlement to me as well, when someone who doesn’t see something as a problem that others do extrapolates that into the assertion that it’s not a problem.  Although Norm has been around a long time, he’s kept largely to himself and avoided the collateral issues.  He’s questioned why I post about it here from time to time, since it’s not on his radar.  I’ve tried to explain, but obviously haven’t done a satisfactory job of it.  As Mark Bennett says, “I can explain it to you, but I can’t understand for you.”

What “we” do is write.  Why is up to each of us to decide, rather than project onto others.  Some just like to write.  Others write for business.  Still others write for validation and approval.  “We” question the motivations of others, which is what “we” often do.  It’s fine to question, but the answers are often elusive.  The answers usually tell more about the questioner than the questioned.

Norm’s inclination to believe that “anti-marketing is merely one brand of marketing” tells me only about Norm rather than anyone else.  Norm once wrote that anybody who read his posts would never hire him.  That was certainly true, at least back then.  Maybe he’s moved into the feel-good camp, where blawgers exude emotions to entice others who share their fee-ee-eelings to join him in a rousing chorus of Kumbaya.  But I’m not really sure.

Mirriam brings her post toward a close by writing:

Here are some things I do understand:  The Supreme Court came down with a decision today saying that you have to actually say you don’t want to talk to the police in order to invoke your right not to talk to the police.   There were ten murders in Baltimore over the past several days, and I’m waiting to hear if I’m on the CJA panel here in Maryland.

I wonder if Mirriam has any thoughts about these law-related things.  If so, one can’t tell.  Jamison says Mirriam is a “kick ass lawyer.”  He’s had lunch with her.  I haven’t.  Maybe one day she’ll decide to become a “thought leader” and then I will be able to tell. I think Mirriam may well have significant thoughts about legal issues. I look forward to finding out.  I wonder if she will ever take the chance.

And one might wonder why I’ve tried to help explain these things that Mirriam, Jamison and even Norm don’t get.  It’s because I like these guys and want to help.  I’m confident that this post won’t get me any clients or win me any kudos.  My guess is that my help won’t really be appreciated, and they may even be unhappy with me for writing this.

Or maybe it’s part of my carefully crafted internet persona designed to create the impression of caring about people while eschewing self-promotion, which in a perverse way, permits me to be self-aggrandizing through the back door.  Then again, this may just be the way people talk among themselves when they are being honest and forthright, with neither hidden agenda nor ulterior motive. 

Of course, these are just my thoughts.  Does that make me a “thought leader”?  I don’t think so.  If nothing else, I’ve given Jamison and Mirriam a link, which should help with their SEO.  That should count for something.

I hadn’t thought about the DiGuglielmo case in a long time, until I saw Nathan Burney’s post on the outcome of the appeal of Richie DiGuglielmo’s 440.10 motion to vacate the conviction based upon two witnesses who, naturally long after the trial, came forward to say that the police had pushed them to change their testimony.

This was a highly racially charged case, with DiGuglielmo accused of shooting a black man, Charles Campbell.  To make things worse, Richie DiGuglielmo was an off-duty cop.  Nathan’s post provides a detailed description of the facts of the case, but the crux of the defense was that DiGuglielmo claimed that he shot Campbell as he was about to swing a bat and strike DiGuglielmo’s father.  The problem was that two neutral witnesses watching the incident testified otherwise.

Two witnesses saw it from inside a truck parked right there. After the shooting, they made statements to the press and to the police that Campbell was still swinging the bat at the old man, had swung at his head, and was about to swing again when he got shot.

At trial, however, they testified differently, telling the jury only that Campbell was holding the bat in a batter’s stance, but was not swinging the bat, when DiGuglielmo shot him.

The then-Westchester County District Attorney, now TV judge of the slimiest sort, Jeanine Pirro, seized the opportunity to try the case in the media, as was her wont.  It was lurid, racist, horrible.  Every cliche that could be used to obscure the facts was.  Pirro had big plans for herself, especially after her husband went to prison.  Apparently, his was the only crime about which she was totally unaware. How odd.

The Appellate Division, Second Department, is one of those very strange courts, where the outcome can vary wildly based on the composition of the bench.  This bench wasn’t a good one for DiGuglielmo.  Nathan sums up the decision:

It’s a horrible decision, and we’re frankly surprised that it made it out of the draft stage in this form.

Here’s the logic, in a nutshell:

(1) Based on the testimony at trial, the jury must have concluded that the father was being the aggressor, and that the victim was backing away, and most importantly that the victim was not swinging at his head.

(2) The new evidence contradicts those conclusions. The new evidence is that the men in the truck saw the victim swinging at the father’s head, and was about to do so again. The new evidence is that they made multiple statements to that effect on the day of the shooting, but only changed their stories after several days of police pressure to do so.

(3) Because the new evidence is contrary to what the jury concluded, it must be something the jury didn’t believe. Therefore, the jury wouldn’t have believed this new evidence. And so the new evidence wouldn’t have changed the jury’s mind.

That’s circular reasoning. The jury didn’t believe the victim was about to take a swing at the old man. Therefore, the jury wouldn’t have believed evidence to the contrary. So it wouldn’t have made a different to introduce such evidence.

I’m not as clear that I would describe the reasoning as circular, as much as they’ve written the significance of witnesses out of the script.  The implicit finding that the senior DiGuglielmo was the aggressor, not Campbell, isn’t troubling in itself, but troubling in that the jury arrived at it based on less than truthful testimony at the hands of the police. 

The Second Department’s conclusion, that the truthful and accurate testimony of witnesses on the central point of the defense, wouldn’t change the outcome, seems horribly (or typically, according to your perspective) cynical.  These independent witnesses provided testimony that not only failed to support the defense, but supported the prosecution.  While there’s no ironclad guarantee that it would have resulted in acquittal, that’s not the test.  It need only offer a reasonable probability.  Given the critical nature of the testimony, and its importance to the defense at trial, this seems manifest.

Yet the court held :

In sum, considering the trial and newly discovered evidence in combination, the circumstances did not support an objectively reasonable inference that a deadly strike with the bat was imminent. Had the jury heard the evidence of undue police pressure on witnesses and fully credited the October 3rd statements of Dillon, O’Donnell, and White, the People still would have disproved the defense of justification beyond a reasonable doubt. The defendant, thus, failed to meet his burden of establishing the probability that, had the newly discovered evidence been received at trial, the verdict would have been more favorable to him

What makes little sense is the conclusion that the prosecution would have disproved the defense, despite the truthful testimony, beyond a reasonable doubt.  There is no basis whatsoever to support this conclusion, since it’s all about the evidence.  The testimony of these two men was the evidence. 

Most troubling about this strange abuse of reason is that the false testimony was induced by the police, a fact avoided by the same reasonable probability test so that the Brady denial can be sloughed off.  This aspect contributes to the reduction of evidence to a farce on the back end of the trial.  It’s oh-so-critical when it serves to impugn and convict up front, and it’s so inconsequential, nearly worthless, afterward.

I’m likely less convinced than others that DiGuglielmo was justified in firing the shots that killed Campbell.  I’m a big believer that shooting and killing people is something to be avoided if at all possible, and I suspect that it was quite possible here that the day could have ended with no one dead.  The sense of imminence and alternatives is largely in the eyes of the guy with his finger on the trigger, and I’m hardly clear that Richie DiGuglielmo’s choice wasn’t terribly wrong.

But I still expect him to be tried on truthful testimony, and it’s incomprehensible that the addition of critical neutral testimony of Campell swinging the bat at the senior DiGuglielmo, and the subtraction of critical neutral testimony that Campbell wasn’t threatening the old man with a bat about to take his head off, can be dismissed out of hand.

Either way, the only person happy about this is TV Judge Jeanine, who dodged another bullet in her quest for validation.

Postscript: A bit of irony is that Marty Tankleff, whose decision is mentioned in passing by the Second Department, is a paralegal in Nathan’s firm.  It appears that he is also a supporter of Richie DiGuglielmo.  While Tankleff, as noted at the end of Nathan’s post, knows a little something about wrongful convictions, and no doubt brings zeal to his efforts, I’m not sure that it doesn’t also bring a lack of detachment when it comes to the ultimate decision of whether DiGuglielmo was right or wrong to pull the trigger.  It’s good, however, that he’s found a place to put his efforts to good use, and I wish him well.

“Do you pray to God to forgive you for shooting that boy down?”

“Yes”

We’ve been down this road before.  Every law students studies the 1977 decision of Brewer v. Williams, where the defendant invoked his 6th Amendment right to counsel.  Yet police continued to try to get Williams to talk, manipulating him with an appeal to his deep religious beliefs, that the parents of the young girl he murdered should be able to have a Christian burial.  Williams led police to the body.

Much is packed into the Supreme Court’s  Berghuis v. Thompkins decision,  Much surrounds it.  It’s a 5-4 decision, thus leaving the rights protected by our Constitution in the hands of a single individual, Justice Anthony Kennedy, whose individual views more than any other dictate the fundamental law of the United States of America.  There was Elena Kagan, whose path from Harvard to the Supremes included her request to step into this case where she was neither needed nor wanted, to take an extreme position against the maintenance of individual rights. 

The way it’s told, the decision is ironic in that a defendant is required to speak to remain silent.  Putting in these terms makes it almost cute, not to mention silly.  It isn’t as vast a departure from our understanding of the tortured use of Miranda to protect police interrogations as some suggest.  Before this decision, defendant’s were required to invoke the right to remain silent or the right to counsel in a clear and unambiguous way.  This alone tripped up most defendants who were otherwise disinclined to heed the warnings.  Most defendants heard and understood the warnings clearly, and talked anyway. 

The change of Berghuis is that a clear and unambiguous invocation of rights now requires a defendant to express it verbally.  He must say something to invoke.  What he says must be a clear and unambiguous invocation, but it isn’t enough to refuse to speak for three hours.  The sweet talk of Johnston v. Zerbst, that it wasn’t the defendant’s duty to invoke, but the government’s duty to prove waiver, is a faint memory.  But the default shifted from the government to the defendant long ago.  Now, they’re only working out the details.

This decision also offers a wonderful example of how courts discuss our constitutional rights in terms of precedent, then inexplicably shift direction as if we were blind-folded, spun around and will have neither idea nor concern how we ended up facing the other way.  The majority will repeat the black letters written by justices long gone, then arrive in a place that can’t be reached from there. 

Slaves to intellectual honesty will be appalled, but it’s not like they overruled precedent, which would get the academics all atwitter.  They just conveniently put it behind the firewall of choices.  The police played the Miranda game by giving the warnings.  The defendant simply made the choice not to invoke his rights.  The obligation of the police to show waiver, rather than the defendant to show invocation, fell by the wayside.  Six of one, half dozen of the other. 

It wouldn’t mean a thing if people would simply learn how to properly invoke their right to remain silent and right to counsel.  Criminal defense lawyers spell it out clearly for people all the time, yet they seem to perpetually have a problem with it.  The Supremes shrug.  Why should it be the cops’ fault that people just can’t seem to get it? 

Just as the Miranda court assumed that its ruling would be the end of confessions obtained by custodial interrogations, subsequent courts have learned that people just can’t stop themselves from talking when the police inquire.  Some believe they can talk their way out of their problems.  Rarely does that work, but whenever that’s said, someone will tell the story of how they did it and walked away froom custody.  Others try to invoke, but in their effort to be polite, or at least not antagonize police, they fail to make it clear and unambiguous by using such tepid phraseology as “I think I should speak with a lawyer before answering any questions.”  As courts tell us, who the heck knows what that means.

And the little appreciated corollary to the problem is that deception, otherwise known as bald-faced lying, is an effective law enforcement tool.  By using the word “effective”, it somehow trumps whatever rights are trampled in the process.

Berghuis v. Thompkins is a decision by Justice Kennedy that somebody has to be the one responsible for saying the magic words, and he thinks it ought to be the defendant, since the defendant is the one least capable of doing so and it’s better for law enforcement, it’s more effective, to get confessions than not.  By allowing people to invoke their rights, if they know the magic words and can manage to get them out properly (and the cops scribble them down accurately when writing their report the next day), they have a chance of safeguarding their constitutional rights.  That’s good enough, even if most will be incapable of doing so. 

As for the promise of the 5th and 6th Amendments, the protection of rights that Miranda v. Arizona had in mind, which now lasts only 14 days at best, it was stillborn.  The sweet words of precedent did nothing to help defendants to overcome the coercion, manipulation, lies and pressure to hear their rights and still utter the words that would convict them.  It provided an easy shield for the police that never worked as a sword for the defendant.  It was dead on arrival.

All Miranda needs now is a decent Christian burial.

As for the handful of friends who’ve become judges and will still talk to me despite the things I write here, they react the same as anyone else when a police officer strolls up to them on the street and makes the good ol’ common law inquiry.  They know better than to play wise guy lawyer (or judge in their case), showing the cop how smart they are by asserting their “rights” and, perhaps, getting a very embarrassing, perhaps even painful, response.  Just cooperate and nobody gets their picture on the front page of the Post.

Yet the creative writing of their decisions perpetuates the myth that civilians could avoid many problems by merely ignoring the police.  One such novella bears the boring title State v. Priddy, out of the Texas 2nd District Court of Appeals (Fort Worth), as reported at Liberty and Justice For Y’all.

In Priddy, the defendant, who was sitting in her car eating a hamburger, was approached by an officer who, after placing the spotlight on her car and running her plates, knocked on her window and requested to see her driver’s license.  The officer was interested in this car, in particular, because it was recently reported that the driver might be under the influence of alcohol.  Based on the facts, however, both the trial court and the appellate court agreed that the officer did not have reasonable suspicion to initiate an investigative detention when he approached the car.

Once the woman rolled down her window, however, everything changed. 

This is where the court engaged in a flight of fantasy. 

So long as the citizen remains free to disregard the officer’s questions and go about his or her business, the encounter is consensual and merit no further constitutional analysis.

Got that?  You are free to disregard the officer’s questions. Free!  Free at last.  And the officer is thereupon free to smack you around a bit for being noncompliant, which in itself provides probable cause to arrest, which will happen after he teaches you a painful lesson about disregarding his questions.

“On what planet do these judges live,” you ask?  The same one as you and I.  They know that this isn’t the way life works; not your life or theirs.  They know that no one, including a judge, expects to disregard the officer with impunity.  And yet the fantasy persists.

We have a constitutional right to be left alone, “too precious to entrust to the discretion of those whose job is the detection of crime” (McDonald v United States, 335 US 451, 455).  Of course, they’ve got a funny way of showing just how precious that right is, by preserving in platitude what rarely exists in reality. 

No one, from beggar to Senator (which may not be a very broad spectrum), feels this way.  We all feel constrained to submit to the badge.  No one feels sufficiently bold to elect to ignore the officer and continue going about our business.  McDonald says we can make that choice, but no cop I’ve ever known would let that happen.  And no person I’ve ever seen believes it to be true.

Decisions like Priddy allow for judges to neatly package their decisions, applying all the precious rights in a way that comports with a constitutional adherence one would expect from a court of law, while arriving at a conclusion that makes for a great punchline, but for the fact that somebody is going to end up prosecuted, and even imprisoned, for the joke.

B.W. Barnett is quite right when he argues that there is no such thing as a consensual encounter initiated by police.  We comply because there is no reasonable person who believes that any other choice exists.  Judges don’t think otherwise.  Nobody thinks otherwise.  When the cop inquires, we respond.  Not because we want to, but because we would really prefer not to have our head bashed in or spend the night in the hoosegow.

This is one of the many legal fictions that really needs to be put to rest, one way or another.  Respect for the law demands that it not perpetuate absurdities.  The contention that we are free to disregard a cop as a matter of constitutional right is absurd, and it’s time to put this fantasy to bed.

Just as Radley Balko has done an exemplary job of chronicling puppycide, the needless knee-jerk killing of dogs by police officers, George Washington Lawprof Jonathon Turley has done the same for police informing people, and often backing up their advice with a big stick, that it’s illegal to video and record them.

Turley had two posts on one day this week, one from Maryland and another from California, bearing witness to the cops’ desire to have no witness to their actions,   That Massachusetts didn’t make the list this week is mere kismet.  The recurring theme is that police are of the view that taping them is a crime.  Sometimes, they tell the videotaper to stop.  Other times, they let their cuffs do the talking.

As Carlos Miller’s aptly named blog says, photography is not a crime.  Nor is videotaping a public officer in public performing his duty.  Indeed, as shown by the But For Video series here, good people would never believe that the age-old complaints of police abuse and misconduct do, in fact, happen, exactly as alleged and despite the facile arguments challenging the accusers, but for video.  In the absence of visual proof, most of us will immediately shrug off accusations of misconduct as being far-fetched and merely an attempt to get back at police for doing their job.  We now know better.

This is why the recording of police in the performance of their job has become a critical component of cleaning up the mess left behind by generations of blind faith in our support of law enforcement and denial that bad things ever happen. It’s less about nailing the individual cop than about changing the police culture that they can do, and get away with, anything they want.  Knowing that we’re watching, the blue wall can no longer shield them from our probing eyes.

This makes the cop lie, that it’s a crime to videotape them, all the more nefarious.  Not only is it false in itself, but serves to conceal the collateral misconduct that must be revealed if change to cop culture is ever to happen. 

That the police are able to perpetuate their self-serving myth speaks to a lack of information to the public.  A few well-placed headlines in newspapers proclaiming that it is not a crime to videotape police in public in the performance of their job would go a long way in putting an end to the cop lie.  Maybe a nice investigative piece on a television news magazine.  There is certainly more than enough video around already to cut and paste a show together.  Heck, they could just cruise through a few months of Turley posts and have a show done in an hour.

No matter how widely read Turley’s blog may be, the countervailing voice to the cop lie needs to be spoken more loudly and disseminated more widely.  People need to know that it’s a lie.  Cops need to know that they are spreading a lie.  Cops need to know that people know they are lying to cover their own behinds.  The lie needs to die.

Then there’s the ironic problem behind the lie, that anyone recording police conduct risks arrest, if not a good tune-up in the process.

As Carlos Miller notes,

The problem with many cops is that they are stupid.

How else can you explain a cop deliberately tripping a bicyclist knowing he is being videotaped?

Didn’t the conviction of former NYPD cop Patrick Pogan have any impact at all?

The answer is self-evident, as the existence of videotape demonstrates.  Some people remain sufficiently brave and bold to let the camera roll despite the risk.  And the police have yet to reach the point of self-actualization, or maybe just self-preservation, to control their impulse to beat the crap out of people and lie about it, even though their conduct is caught on video.  No question about it, it’s stupid. 

It would be great if watching these videos caused a shift in police culture where officers realized that what they do to people is outrageous and unjustifiable.  Imagine the day when one cop would stop another whose baton was raised over his head about the crash down on the skull of some kid who posed no threat of harm to anyone.  That day is nowhere in sight.

In the meantime, the best we can do is continue to spread the word, and the videos, of police misconduct and hope that cops, even if they refuse to control their vicious impulses because it’s wrong, will act in their own self-interest because of fear that someone is videotaping their abuse. 

The first thing that needs to stop is the lie.  Where are the headlines?

My past posts on Memorial Day, 2007, 2008 and 2009, speak of the sensibilities of a child of a World War II veteran, a youth during the Viet Nam War, and a father with a son coming of registration age.  Others have more valuable things to offer.  With the gracious permission of David Giacalone, I offer his haiga.

We come to grips with our mixed feelings over time.  When we were kids, we protested the war in Viet Nam.  Each year since, we better appreciate the sacrifice of our brothers, neighbors, friends who died there. 

The old veteran of the Bulge, a survivor when others didn’t, remembers them more clearly with each passing year.  The years spent paying off the mortgage have given way to the feelings long suppressed.  He hopes that we will continue to remember the war dead, all of them, even after he’s gone. 

I wonder if all the young men and women today will think about others who cared enough to die for something.  I wonder if they can even imagine anything mattering enough to die for.  Soldiers gave no thought to work/life balance.  Those who will never know any risk to their well-being greater than carpal tunnel syndrome should pay particular attention to Memorial Day.  It’s the closest they will ever come to understanding what it means to sacrifice.

Addendum:  Almost as if on cue, I came upon this post by Max Kennerly.  The primary subject, the sale of a home out from under an active duty soldier, was one on my list of things to write about, but never made it to the top.  Max handles the issues adeptly.  But before he ends his post, he adds a little bit on the backend that disturbed me, especially today.  After referencing the New York Times Magazine story about the Slackoisie, he writes:

I normally refrain from reading, much less commenting about, such drivel, but the “nation of wimps” comment deserves a response.

Drivel is how one describes unpleasant reality that one would prefer to ignore than address in the hope it goes away.

The same day that story was published, Army Pfc. Christopher R. Barton, 22, died in Khowst province, Afghanistan, of wounds sustained when insurgents attacked his unit using small-arms fire.

“Nation of wimps?”

Private Barton died.  How Max can extrapolate his sacrifice to bolster the bravery of every flip-flopped kid sipping a latte in Starbucks and brooding over work/life balance is outrageous.  It’s self-aggrandizing connections like this that strike fear in my heart for the future.

“Nation of wimps?”

Yes, and shameless ones at that.  Private Barton’s sacrifie does not make you brave, Max.  And on Memorial Day?

It was bad when it first happened.  Awful after a week.  Nightmarish after a month.  But reality is finally setting in that there is no fix.  They have no answer to the oil flowing out of a pipe in the Gulf.  They can’t fix it.

Colin Powell, former Secretary of State and, more importantly, former chairman of the Joint Chiefs, suggested on ABC’s This Week that it’s time to take this out of the hands of British Petroleum and put it into the hands of the military.  They bring command and control.

The current Chairman of the Joint Chiefs, Mike Mullen, however, noted one problem.  The military may have the organization, but they have no clue what to do.  The oil industry has the technology, he said, not the military.  In other words, there is no answer.

Who cares if this ruins BP.  At the moment, it’s unlikely that any but a few major shareholders could care less whether BP survives this disaster.  Indeed, many would pray for its demise given the harm it’s done.  This is far, far bigger than corporate liability, or politics. 

This is no longer merely a big oil spill.  Not even a huge oil spill.  No one is really talking about the long term impact of what is happening, and continuing to happen, in the Gulf of Mexico.  Current talk is about oil spewing out for months.

An uncontrollable fountain of oil could gush into the Gulf of Mexico until August, the Obama administration warned today, as BP conceded it was moving to a containment strategy after failing to plug the well at the centre of the most environmentally disastrous spill in US history.

As anger and despair grew in the coastal communities of Louisiana, BP began preparations to cut a leaking drill pipe on the ocean floor and attach a containment cap intended to capture at least some of the 12,000 to 19,000 barrels of crude spewing from its Macondo well every day.

People are angry, and looking to find someone to blame, as if blaming will stop the oil from flowing.  Once it’s over, there will be plenty of time to decide who you hate more.  Right now, there is no fix in sight.

Consider the ramifications.  It’s insufficient to talk of an environmental disaster of unimaginable magnitude. Have we finally screwed things up enough to fundamentally alter, maybe even doom, our continued existence on this planet?

Overwrought?  Probably, but I often fear that our faith in a magic solution popping up out of nowhere will one day prove unfounded.  We’ve been awfully lucky up to now that mankind has come up with solutions for the problems we cause.  What happens when our luck runs out?

Assuming the oil continues to spew for a couple more months, how much damage will be done and how can it be repaired?  What if August brings no solution, and the oil continues to spew until it runs dry?  No one wants to consider such a possibility, because the idea is unfathomable.

And in the event that someone comes up with a solution to stop the flow this time, anybody want to bet that we will learn nothing from it?  Forget blaming BP or Obama, or anyone else for that matter.  No one has an answer, and no one can vouchsafe our future. We live in a fantasy world, on a wing and a prayer, that our actions won’t cause irreparable disaster.  One day, we will be wrong.

It’s unclear whether we really blew it this time, but it’s become undeniable that one day, some day, we will finally blow it once and for all.  Who will you blame then?